Attorneys for ex-MPD officer charged in fatal crash says state destroyed key evidence

A former Minneapolis police officer charged with manslaughter for a fatal crash while pursing a carjacking suspect last year is accusing the state of destroying evidence relevant to his case.

Attorneys representing Brian Cummings are asking the court to impose sanctions on prosecutors for the destruction of dispatch calls, speed tracking information, GPS data and messages between Minnesota State Patrol troopers responding to or assigned to the crash on July 6, 2021.

But prosecutors say the evidence was destroyed due to retention policy, not bad faith. Hennepin County District Judge Tamara Garcia heard arguments on the matter Monday afternoon in court and will issue a decision in 30 days.

Meanwhile, Cummings' trial was recently rescheduled for May 1, nearly two years after the fatal crash. He is not in custody and no longer with the Police Department. At the hearing Monday, his family sat behind him in the courtroom as well as relatives of Leneal Frazier, 40 of St. Paul, who was killed in the crash.

Cummings was pursuing a vehicle stolen at gunpoint that was traveling about 100 mph on residential streets in north Minneapolis. He followed the car when it ran a red light around 12:30 a.m. That's when Frazier was crossing the intersection of N. Lyndale and 41st avenues in his Jeep and Cummings' squad car struck Frazier's vehicle.

The suspect, James J. Jones-Drain, 19, was charged last week with auto theft and fleeing police in connection to the crash. He allegedly stole the vehicle from Target on E. Lake Street three days before the fatality. Within the first two hours of driving off in the stolen vehicle, he allegedly robbed four retail businesses.

At the heart of this case is a question of whether Cummings caused Frazier's death or, what Cummings' attorneys Deborah Ellis and Thomas Plunkett argue, that Jones-Drain is responsible.

"The carjacker's speed and decision to flee is what drove the fatality in this case," Ellis said in court Monday. "What is very important to the defense is to show the speed and urgency in which other responders went to that scene or responded to the pursuit."

Prosecutors argue Cummings was traveling at an unreasonable, reckless speed, which led to charges of second-degree manslaughter for creating an unreasonable risk and taking the chance of causing death or great bodily harm; and criminal vehicular homicide for operating his vehicle in a grossly negligent manner.

By the time the defense requested data from the State Patrol in November, assistant Hennepin County attorney Raoul Shah said some of that information had been destroyed. The policy is a 30-day retention window for dispatch records and 90 days for GPS data. Squad video is retained for 13 months or seven years if part of an investigative file, and that evidence has been provided to defense.

"It had already been disposed of," Shah said, adding that sanctions should not be imposed because the disposal was not in bad faith and the trooper data would not obviously reduce Cummings' guilt. The evidence has "no bearing on whether his conduct was grossly negligent," he said.

Cummings' attorneys said the data was required by the state to be retained for at least seven years because it involved a fatal crash and police officer. Ellis said it was a "flagrant violation of their retention policy" because the state knew litigation was anticipated and such data would be part of the investigative file. Data is supposed to be permanent for fatal investigative files.

In their motion, the defense said the requested data would corroborate Cummings' "perceptions of urgency and dangerousness." It would also impeach testimony of state trooper Sgt. Lance Langford, a reconstruction expert who believes the fatal crash was entirely caused by Cummings.

Whether data was destroyed inadvertently or deliberately, the defense is asking the judge to stop the state from arguing Cummings' driving was the sole cause of the collision, and prevent Langford and other witnesses from offering opinions on whether Cummings' speed was reasonable.

At the very least, Cummings' attorneys say, the jury must presume the destroyed evidence was favorable to the defense, and prosecutors should not be allowed to capitalize on the destroyed evidence.

Garcia denied the defense motion to dismiss the case, with Minneapolis police Lt. Chris Hudok sharing in an affidavit that he was "not aware of any officer who has been charged with a felony by the Hennepin County Attorney for pursuit-related conduct."

The judge's decision came down to Cummings driving up to 100 mph in a residential zone with 25 mph posted speed limit — not the suspect of the stolen vehicle.

Cummings pursued the stolen vehicle for 20 blocks and was traveling about 78 mph when he hit Frazier.

The fatality sparked a review of the city's police pursuit policy, which says police may not initiate or must end a pursuit if it "poses an unreasonable risk to the officers, the public or passengers of the vehicle being pursued who may be unwilling participants."

Frazier was a father of six and an uncle to Darnella Frazier, the young woman who recorded George Floyd's killing by Minneapolis police officers.